The Pulaski Rubber Co.

THE PULASKI RUBBER COMPANY 347 The Pulaski Rubber Company and United Rubber, Cork, Lino- leum & Plastic Workers of America, AFL-CIO. Case No. 26-CA-997 (formerly 10-CA-4395). April 27, 1961 DECISION AND ORDER On December 14, 1960, Trial Examiner Alba B. Martin issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Inter- mediate Report attached hereto. He also found that the Respondent had not engaged in certain other alleged unfair labor practices and recommended dismissal of the complaint pertaining to such alleged unfair labor practices. Thereafter, the Charging Party and the Re- spondent filed exceptions to the Intermediate Report, and the Re- spondent filed a supporting brief. Pursuant to Section 3(b) of the National Labor Relations Act, the Board has delegated its powers herein to a three-member panel [Members Rodgers, Leedom, and Fanning]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Interme- diate Report, the exceptions and brief, and the entire record in the case, and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner, except as noted below.' ORDER Upon the basis of the entire record in this case, and pursuant to Section 10 (c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, The Pulaski Rubber Company, Pulaski, Tennessee, its officers, agents, successors, and assigns, shall: 1. Cease and desist from : (a) Discouraging membership in United Rubber, Cork, Lino- leum & Plastic Workers of America, AFL-CIO, or any other labor organization of its employees , by discriminating in regard to the i In finding that the Respondent's letters to its employees , dated January 8, 1960, and January 14 , 1960, violated Section 8(a)(1) of the Act, the Trial Examiner noted that these letters were sent to smalltown, unsophisticated employees working in a small plant, and observed that "Had they been addressed to employees more sophisticated in self- organization and collective bargaining the same conclusion might not follow " We do not rely on this rationale of the Trial Examiner . In our view, whether or not the Respond- ent's employees were so unsophisticated, the letters were calculated to, or tended to, coerce the employees in the exercise of the rights guaranteed in Section 7 of the Act and, therefore, constituted a violation of Section 8(a)(1). Accord : The Red Rock Company, at al., 84 NLRB 521, 625. 131 NLRB No. 51. 348 DECISIONS OF NATIONAL LABOR RELATIONS BOARD hire and tenure of their employment or any term or condition of employment. (b) Interrogating its employees concerning their union member- ship or sympathies, including how they intend to vote in a representa- tion election, in a manner constituting interference, restraint, or coer- cion, within the meaning of Section 8(a) (1) of the Act. (c) Threatening employees' chances of advancement or their job security or threatening to close the plant and quit business in order to defeat the Union. (d) In any other manner interfering with, restraining, or coercing its employees in the exercise of the right to self-organization, to form labor organizations, to join or assist United Rubber, Cork, Lino- leum R Plastic Workers of America, AFL-CIO, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the pur- pose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities. 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act: (a) Offer to Raymond Harold Burrow immediate and full rein- statement to his former or substantially equivalent position, without prejudice to his seniority and other rights and privileges previously enjoyed. (b) Make whole Raymond Harold Burrow for any loss of pay he may have suffered by reason of the Respondent's discrimination against him in accordance with the recommendations set forth in the section of the Intermediate Report entitled "The Remedy." (c) Post at its plant at Pulaski, Tennessee, copies of the notice at- tached hereto marked "Appendix."' Copies of said notice, to be fur- nished by the Regional Director for the Twenty-sixth Region, shall, after being signed by the Respondent's representative, be posted by the Respondent and maintained by it for 60 consecutive days there- after in conspicuous places, including all places where notices to em- ployees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for the Twenty-sixth Region, in writing, within 10 days from the date of this Order, what steps the Respondent has taken to comply herewith. IT IS FURTHER ORDERED that the complaint be, and it hereby is, dis- missed insofar as it alleges that the Respondent discriminated against Nelson Rogers in violation of the Act. IIn the event that this Order is enforced by a decree of a United States Court of Appeals , there shall be substituted for the words "Pursuant to a Decision and Order" the words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order." THE PULASKI RUBBER COMPANY ' 349 APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our employees that : WE WILL NOT in any manner interfere with, restrain, or coerce our employees in the exercise of the right to self-organization, to form labor organizations, to join or assist United Rubber, Cork, Linoleum & Plastic Workers of America, AFL-CIO, or any other labor organization, to bargain collectively through representa- tives of their own choosing, and to engage in concerted activities for the purposes of collective bargaining or other mutual aid or protection, or to refrain from any and all such activities. WE WILL NOT interrogate our employees concerning their union membership or sympathies, including how they intend to vote in a representation election, in a manner constituting interference, restraint, and coercion within the meaning of Section 8 (a) (1) of the Act. WE WILL NOT threaten employees' chances of advancement or their job security, or threaten to close the plant and quit business in order to defeat United Rubber, Cork, Linoleum & Plastic Workers of America, AFL-CIO, or any other labor organization of our employees. WE WILL NOT discourage membership in United Rubber, Cork, Linoleum & Plastic Workers of America, AFL-CIO, or any other labor organization of our employees, by discriminating in any manner with regard to their hire and tenure of employment, or any term or condition of employment. WE WILL offer to Raymond Harold Burrow immediate and full reinstatement to his former or substantially equivalent position, without prejudice to his seniority and other rights and privileges previously enjoyed. WE WILL make whole Raymond Harold Burrow for any loss of pay suffered by him by reason of the discrimination practiced against him. All our employees are free to become, remain, or refrain from be- coming members of the above-named Union or any other labor organ- ization. THE PULASKI RUBBER COMPANY, Employer. Dated---------------- By------------------------------------- (Representative ) (Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. 350 DECISIONS OF NATIONAL LABOR RELATIONS BOARD INTERMEDIATE REPORT STATEMENT OF THE CASE This proceeding, with the General Counsel and Respondent represented by counsel, was heard before Alba B. Martin, the duly designated Trial Examiner, in Pulaski, Tennessee, on complaint of the General Counsel and answer of The Pulaski Rubber Company of Pulaski, Tennessee, the Respondent. The issues litigated were whether Respondent interrogated and threatened employees in violation of Section 8(a)(1) of the Act and whether Respondent discriminatorily discharged Raymond H. Burrow and Nelson Rogers in violation of Section 8(a)(3) of the Act. At the conclusion of all evidence decision was reserved upon Respondent's motions to dismiss the complaint. These motions are hereby ruled upon in accordance with the findings and conclusions herein. Both parties filed helpful briefs, which have been carefully considered, and both parties served copies of their brief upon United Rubber, Cork, Linoleum & Plastic Workers of America, AFL-CIO, which filed the charge herein. Upon the entire record and my observation of the witnesses, I hereby make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The Pulaski Rubber Company is a Tennessee corporation having its principal office and place of business in Pulaski, Tennessee, where it is engaged in the manu- facture and sale of small solid and semipneumatic tires for such vehicles as small bicycles, tricycles, kiddie cars, scooters, and lawnmowers. Respondent began doing business in Pulaski in August 1957. During the calendar year just preceding the issuance of the complaint, a representative period, Respondent sold and shipped from its Pulaski plant products valued in excess of $50,000 a year to points located out- side the State of Tennessee. Respondent admitted and I find that it is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. H. THE LABOR ORGANIZATION INVOLVED United Rubber, Cork, Linoleum & Plastic Workers of America, AFL-CIO, is a labor organization as defined in Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. Interference, restraint, and coercion The events herein occurred while the Union was attempting to organize the em- ployees at the Pulaski plant. They occurred shortly before and shortly after a Board-conducted election at the plant January 21, 1960, which, after resolving ob- jections filed by the Union, the Board set aside. A new election was scheduled for May 20, 1960; immediately after the hearing herein, which was held on May 17 and 18, 1960. During the preelection period, on January 8, 11, and 14, 1960, Respondent's President R. T. Reiss sent letters over his signature to each employee addressed to "Dear Employee." The January 8 letter read as follows: It is my opinion that you-our present employees-and ourselves have done an outstanding job in building up an organization that can be counted on to assure the future success of our Company. It hasn't been an easy job-a complete training job had to be done to develop good employees and foremen. Along the way-,many former employees could not make the grade, many quit and some had to be discharged for excessive absenteeism, poor workmanship, and other reasons. But now-I sincerely be- lieve that we have a good nucleus for our future growth-and that many of you will advance to foremen and other better jobs in our Company as we move ahead. A third party could only disrupt the harmony of our present organization and undoubtedly would seriously hamper our growth and your chances for individual advancement. Any union-means lack of harmony between the company and its employees, retards both the company and the individual's chance of advancement, means strikes and possible violence, and many companies have found unions so un- reasonable that they have found it to their advantage to quit business. A vote for a union would be a vote against the Company-and therefore, a vote against yourselves. THE PULASKI RUBBER COMPANY 351 The January 11 letter read as follows: Although our Pulaski operations have been unprofitable to date-I sincerely believe we have done an excellent job for our employees. Our loss for the first 2 years was approximately $27,000 and this year's op- eration will only make up part of this loss. In spite of our operating losses, we have provided you and your family with the following benefits: 1. Equal nand highest wage rates in the immediate area; 2. Considerable overtime work-because our policy has been to secure additional business to warrant such overtime work; 3. Christmas holiday pay and Company paid life insurance; 4. A very generous vacation plan-all employees with 1 year of service get a full week of vacation with pay; 5. Company paid hospital and surgical insurance for employees and their dependents-which is equal to any in the country, and with the low hospital and doctor charges in the area, gives you and your dependents a greater proportion of these charges than you would find anywhere. You must give us credit for our generous wage and benefit program, particu- larly since we have not yet reached a profitable level. And as operations be- come profitable and the Company can afford it-you can be sure that we will continue to do an even better job for you and your family. Remember-"A UNION CANNOT GET ANYTHING FOR YOU THAT THE COMPANY IS NOT WILLING TO GIVE." The January 14 letter read as follows: It is no secret that many companies have moved down South to get away from unreasonable unions which they were saddled with up North. Many of our customers-including our largest customer, do not have unions in their plants. All things being equal-these customers would certainly prefer to give the majority of their business to non-union suppliers. This, of course, would give our non-union competitor in Georgia a big advantage over us-if the majority of our employees would vote for a union. Also, a favorable union vote at our plant, would automatically shut the door on further industrial expansion in the Pulaski area. This would be very bad for our Company, our employees and their families, and for all of the citizens of Pulaski. I am sure that you would not want to risk your job security by voting for 'the union-thereby giving our competitor a terrific advantage with our present cus- tomers, and as a good citizen you should not want to do anything that would hinder the future industrial growth of the Pulaski area. As Respondent well knew and as the record and the letters themselves reflect, these letters were sent to smalltown 1 employees, unsophisticated employees working in a small plant. That the letters were sent for the purpose of defeating the Union in the election cannot be gainsaid. The question is whether these letters sent to these employees imposed involuntary restraint on the will of the employees and so pre- vented them from making a free choice in the election or, forced them to act contrary to their desires with respect to the organization of the Union. Had they been addressed to employees more sophisticated in self-organization and collective bar- gaining the same conclusion might not follow. But addressed to these particular employees there can be no doubt that the first and third letters imposed such volun- tary restraint. Viewed,as the recipient employees would have viewed them, without close analysis of all the qualifying phrases but with an eye and an understanding as to the real meaning to,them, there can be no doubt that these two letters conveyed at least an implied threat that if the Union won the election the employees' chances for advancement and indeed their very jobs were at stake. The words "undoubtedly would" in the third paragraph of the January 8 letter-which read, "A third party could only disrupt the harmony of our present organization and undoubtedly would seriously hamper our growth and your chances for individual advancement"- would not have been interpreted by the recipient employees as converting an other- wise direct threat into a mere prognostication. Nor would the implied threat to quit business and close the plant in the fourth paragraph of the January 8 letter have been mollified in the minds of the recipient employees by the qualifying language 3 Hammond's Ambassador World Atlas, 1959 edition , lists the population of Pulaski as 5,762. 352 DECISIONS OF NATIONAL' LABOR RELATIONS BOARD which preceded it. Likewise the implied threat in the last paragraph of the January 14 letter-"I am sure that you would not want to risk your job security by voting for the union"-would not have been mitigated in the minds of the recipient employees by the language which preceded and followed it. Upon the above considerations I find and hold that by threatening employees' job security and their chances of ad- vancement and by impliedly threatening to quit business and close the plant in the January 8 letter, and by threatening their job security in the January 14 letter, Respondent restrained and coerced employees in the rights guaranteed in Section 7 of the Act, thereby violating Section 8(a) (1) of the Act. On Monday, January 18, 1960, 3 days before the January 21 election, Respondent held a dinner meeting for its employees, at which Respondent's President R. T. Reiss spoke He "discussed" the three letters set forth above and answered questions from the employees. He told the employees that he wanted to talk with them individually the following day. The following day the employees were sent by their foremen to see Reiss and were transported to,a motel in Pulaski individually or in groups by Respondent's comptroller, Harvey Smith. President Reiss spoke to them individu- ally. He testified that he saw them at the motel because there was no convenient place to interview them at the plant. Some 12 employees testified concerning the statements and questions President Reiss addressed to them in the motel room. President Reiss did not specifically deny most of this testimony, but he denied asking any employee if he was a member of the Union or active in union affairs, and he denied making any promises or threats to the employees. Employee James W. Alsup credibly testified that at the motel President Reiss "told me if we voted the Union in out there and had to go out on a strike, everybody in town would know who was for the Union. He said it would be a bit hard to get along with the people here in town. He stated further that we didn't need a third party butting in on our business, after all, the Union couldn't get anything for us that the Company wasn't willing to give." Employee Jessie Lee Brymer testified that Reiss said "they didn't need a union at the Pulaski Rubber Company because it was too small and he also said if the third party came in, . . that the third party would hold a'gun to his head and demand a lot of stuff . . . he said that a union was all right in a big plant. But he said that in a small plant, they don't need one." Employee William E. Pickett testified that Reiss said "it was a third party that was trying to stick their noses in and he didn't think we needed it." Pickett replied, "I didn't know nothing about the Union, that 'I never worked where there was one at, and I hadn't. I don't know anything at all about them." Reiss said that "if the Company made some money, we would all make more money." Employee Elwood Cook testified that he asked Reiss in substance whether the employees would get any more money if they voted the Union in-to which Reiss replied in the negative. Reiss said that at that time the Company was in the hole and needed to get out, that perhaps at a later time "they could give us more money when they made more." Employee Ben S. Peden, a credible witness, testified as follows: "He introduced his self and we shook hands and the first thing he asked me was how I felt about the situation, about the way the election was going to go." Peden replied that he had not made up his mind as to how he was going to vote. "He said this third party was trying to stick their nose in and mettle (sic) in our business and he just tried to keep it one big family at Pulaski Rubber Company and we didn't need a third party in with our business. I told him that it really didn't matter to me how it went that I was planning on going to Trade School anyway and he said that it should matter because if the Union did come in to a plant here in Pulaski, that it would hurt the other industries trying to come into Pulaski. They would by-pass it and go some- where else." [Emphasis supplied.) As Peden left Reiss told him to vote against the Union. Employee William B. Peden credibly testified that after first asking him about Peden's being allegedly disgruntled because he did not get a certain foreman's job, Reiss asked Peden how he felt about the third party, adding that he did not think it would work in a small plant. Reiss "said he didn't think the larger customer like Murray Ohio would want to buy from a union plant " Employee Joe H. Stevenson testified that President Reiss asked him if he was for the Union and the employee replied in the affirmative. Reiss replied that he hoped Stevenson would change his mind, that the Union could not do anything for the employees which the Company was not willing to give. Denying Stevenson's testi- mony, President Reiss testified that in fact Stevenson volunteered that he was for the Union and that Reiss replied to Stevenson that at least Stevenson was honest. THE PULASKI RUBBER COMPANY 353 Employee Norman Richardson testified in substance that Reiss expressed the hope that the Union would be soundly beaten so that the employees would not "mess with them [for] 3 or more years." Reiss also said that the employees did not need the Union and that the Union could not help them unless the Company agreed to it. Employee David E. Bass testified that President Reiss told him to vote right, for the Company, and to leave the Union alone, that the Union would do more harm to the Company than it would do good. Employee Nelson Rogers testified in substance that Reiss asked him if Rogers thought that those Alabama men had any business "with their nose up here in our business." Employee John Cook testified that Reiss told him, "Let's don't get this damn union in here." It appears from the above that during the motel interviews Reiss interrogated three employees, Ben S. Peden, William B. Peden, and Stevenson, as to their sympathies toward the Union. Although Reiss had a different version of his interview with Stevenson he did not deny the interrogations attributed to him by the two Pedens. Under all the circumstances I credit the employees' testimony and find that by interrogating the three employees concerning their sympathies toward the Union, thereby reasonably tending to interfere with the rights guaranteed in Section 7, Respondent violated Section 8(a) (1) of the Act. Employee Raymond Harold Burrow testified that at the motel while he was wait- ing to go in and see President Reiss, Comptroller Harvey Smith said to him in sub- stance that if the Union came in Respondent would drop the employees' insurance it carried for the employees, and the cost of their own insurance which the employees would then have to pay themselves would eat up any wage increase obtained for them by the Union and they would then be no better off than if they had not voted the Union in. Harvey Smith categorically denied this testimony. Of the dozen witnesses who were transported from the plant to the motel only Burrow attributed any threatening remark to Smith. In two written statements given the Board's field examiner in February 1960 by Burrow, no mention was made of any threatening remarks by Smith allegedly made just a few weeks before. Under all the circum- stances I believe and find that Smith did not make the statement attributed to him by Burrow, and I credit Smith's denial. A week or two before the election of January 21, 1960, Foreman Wilson West telephoned employee William B. Peden and, according to Peden, said "that he had been hearing some bad tales on me. I asked him what they were and he said he heard I had gone for the other side. I asked him how he knew and he said some of the boys had been telling me. I asked him who they were and he couldn't tell me. They were his friends. He wanted to know how I was going and I told him when I went in there to vote at the election, I would vote the way I wanted to and that was it. I wouldn't tell anybody." Foreman Wilson West admitted that on this occasion he asked William B. Peden "if he was on the right side of the situation." Under all the circumstances of this case this admitted interrogation by Foreman West reasonably tended to restrain or interfere with the exercise of rights guar- anteed in the Act, Respondent thereby violating Section 8(a)(1) of the Act. Employee Raymond Harold Burrow testified that at the motel Reiss asked him if he had any problems to bring out, Burrow replying that his only problem was more money. Reiss replied that as the Company increased its profit it would raise the employees' pay and he said "we didn't need any third party coming in to tell us just what to do. That they didn't have to meet their demand. He said one reason why he had this plant down here 2 is because he enjoyed his work and said if the Union came in, he wouldn't think he would enjoy his work so much." President Reiss denied making the expression in the last sentence above. Explaining, he said, "Apparently he has reference to a feeling that I have expressed several times to the extent that there would be a lot more personal satisfaction to me if we would be able to establish a successful company and I thought that should be a lot of per- sonal satisfaction to them if the two of us did it without some third party trying to take part of the credit." As none of the other witnesses attributed any expressed or implied threat to Reiss at either the dinner meeting or the motel, I believe and find that Burrow's memory was faulty in this instance and I credit Reiss' version of this interview and find there was no violation of the Act in what he said. 9 Reiss was also president of two other rubber companies in Ohio. His headquarters were in Akron. 599198-62-vol. 131-24 354 DECISIONS OF NATIONAL LABOR RELATIONS BOARD B. The discharges 1. Raymond Harold Burrow Raymond Harold Burrow worked for Respondent from April 27, 1959, until February 12, 1960, most of the time as an operator of a solid tire press. A young man, he was hired right out of military service upon the strong recommendation of R. M. Wheeler, a 70-year-old friendly man who knew as neighbors both Burrow and Foreman Wilson West, and upon the endorsement of Foreman West. Bur- row's work was satisfactory after his introductory period. Burrow signed a union card for the Union in December 1959 and attended three or four meetings. Shortly before the election Foreman Wilson West attempted to influence the vote of Burrow by telephoning Burrow and also their mutual friend, R. M. Wheeler. Telephoning Burrow at the plant while the latter was working, West told him that he had "heard you have been hanging around with the wrong group." In substance West asked him to vote for the Company, and said something about his confidence in Burrow. In his telephone conversation with Wheeler, according to the credited testimony of West, the latter told Wheeler that he thought Burrow was going to vote for the Union. According to the credited testimony of Wheeler, West told him "to go see my boy . he's a good boy. I don't want to lose him. We want to keep a job for him here." On the basis of the testimony in this paragraph I find that Wil- son West knew or suspected Burrow of sympathy for or voting for the Union and knew that this might cost Burrow his job. For economic reasons, on Friday February 12, 1960, Plant Manager Brandle decided to close down a production line called the "industrial line." Closing it down affected six employees. Respondent found places for four of these men elsewhere in the plant, laid off Burrow and Rogers, and placed the other two in their positions. In laying them off Brandle told Burrow and Rogers he would recall them if and when he needed them. Upon reporting his action to President Reiss, the latter's reaction was that they should not be recalled. Thereupon, several days after the layoffs Brandle telephoned Burrow and Rogers and told each that his layoff was permanent. The question is whether Burrow and Rogers were discriminatorily selected for layoff and discharged in order to discourage further membership and activity in the Union. Brandle testified that he called in two foremen (there were four) and asked them who were the most "undesirable" employees at that time in the shop. The names of Burrow and Rogers were mentioned. Burrow testified that when Brandle laid him off Brandle told him that it was due to the production cutback and the numerous warnings to Burrow about his smoking out of the smoking area. As Brandle did not testify concerning the layoff interview I credit Burrow's testimony concerning it. The reason for the layoff given on Burrow's separation slip was "cutback in production." In substance Plant Manager Brandle testified that in selecting Burrow for layoff he considered that the foreman had selected Burrow as "undesirable" and also Brandle considered "the things that he [Burrow] had done previous such as the welding inci- dent, the continually gripping [griping] of every job he got on, and the knife inci- dent.. .. Brandle did not specifically include Burrow's alleged numerous warnings about smoking out of the smoking area. Respondent's defense to the Burrow dis- charge, consisting of the above points, is now considered. To be remembered is that only the subjects of production cutback and smoking were mentioned to Burrow during the exit interview. The welding incident: When Burrow was first hired he told Foreman Wilson West about his experience in school, which included some welding. He told.Brandle that he could weld, that it had been a long time since he had welded and he had probably forgotten everything that he ever knew about it. An assignment his first week in- cluded a welding job which he was unable to perform; he burned right through the steel. Brandle testified that "I wanted to discharge him for lying to me by telling me he was a welder but Wilson West pleaded with me to keep him. So I gave him another chance to try to make a man out of him. I made a job for him as utility man, general miscellaneous work." Soon Brandle put Burrow on the "semi line" in substitution for a man who was off sick, and when he came back in 3 or 4 days Brandle assigned Burrow to the solid tire press where he worked satisfactorily until shortly before his layoff. As Burrow had qualified his original claims to ability to weld, as Plant Manager B,randle gave him several assignments thereafter on which he performed with satisfaction, and as the subject of welding or lying was not men- tioned in the severance interview, I find that "lying" and the "welding incident" were not contributory reasons for the layoff of Burrow. THE PULASKI RUBBER COMPANY 355 Burrow's alleged griping on every job : The record does not bear out Brandle's conclusion that Burrow complained about every job he was assigned to. Shortly after his assignment to the solid tire press a few weeks after the beginning of his employment Burrow asked Brandle to transfer him to some other kind of machinery because he was not accustomed to the extreme heat and the smoke on the solid tire press. Brandle replied that he could not be transferred. Then Burrow became accustomed to the job and liked it despite the heat and smoke. Burrow was left alone for some 8 months during which, as Burrow expressed it on direct examina- tion, "there had been plenty of splicers come and gone and I had plenty of oppor- tunities to start over there or several other jobs but I wasn't changed.... As Burrow explained it on cross-examination: I never said anything else about wanting to get off the press except one time and that was when I first started on it. I had done forgot everything about it until he changed me 6 or 7 months later after there had been several oppor- tunities for me to get off of it. There had been many jobs open around me. I didn't say anything about it. I didn't want them. I was satisfied with where I was. Then, he hauls off about 8 months later and he puts me on the splicing and then he comes up and brings up that I had asked to get off of it . He surely waited a mighty long time. Some 10 days before his layoff, Burrow was transferred to the splicer, on which occasion he asked "why?" Brandle's reply was "Well, you asked to get off of it"- referring to the solid tire press. Burrow complained about the 5-cent-an-hour cut in his wages as a result of the transfer. The record contains no explanation by Brandle or Respondent as to why Brandle made this transfer of Burrow, which was economically costly to the employee. As the complaint did not allege that this transfer was discriminatory and designed to discourage further participation in the Union, and as that question was not fully litigated , I make no such finding although the entire record suggests this possibility. On the entire record I conclude only that Burrow's complaints on these two occasions, justifiable insofar as the record showed, were pretexts for but not the real reasons for, the selection of Burrow for layoff. The "knife incident": All of the time that he worked in the plant until early Jan- uary 1960 Burrow carried with him in the plant a so-called hawk-billed knife. It had a blade about 3 inches long which once had a hook on it, but it was an old knife and almost all of the hook was gone. A knife was not a part of the regular equip- ment for Burrow's job, but from time to time when he needed to cut something he used his own knife . Regular equipment assigned by the Company for some 8 or 10 men to a shift was a much larger knife, something like a butcher knife, with a blade 8 to 10 inches long. Burrow testified that other employees carried pocket knives and that at least two other named employees carried knives like this. These other two employees were not called to deny this testimony. There was no "incident" concerning Burrow's knife. It was not proved that he ever threatened anybody with it. He stopped carrying it in early January, some 2 or 3 weeks before the election, when word came to him through his friends that Respondent was asking around among his friends what kind of a knife Burrow was carrying. There was no evidence that Respondent made similar inquiries about the knives carried by other employees. Burrow testified that the other employees continued to carry their knives. No company foreman ever mentioned the knife to Burrow. Brandle did not mention it in the layoff interview with Burrow. As has been seen above, Burrow's version of his motel interview with President Reiss contained no mention of the knife. Reiss testified that at this interview Bur- row himself brought up the subject of the knife, Burrow expressing the thought that it was not the Company's concern. Reiss allegedly told Burrow that it was a good thing Burrow had gotten rid of the knife. In testifying Reiss volunteered that he considered carrying the knife "the same thing as carrying a gun on the job." Reiss testified further that after his conversation with Burrow he told Brandle that in his opinion Brandle "would have been 100 percent wrong in not taking the proper action at the time he knew about it"-the knife. In any case Reiss did not at that time discharge or instruct Brandle to discharge Burrow for earlier carrying the knife in the plant. He took no action even though, as he testified, he considered "the knife incident" as a "cardinal sin." As knives were regular equipment in the plant and Burrow's was intrinsically no more dangerous than the company knives, as Burrow threatened nobody with the knife, as other employees carried their own knives without the Company being dis- turbed about it, as President Reiss took no action against Burrow upon learning of the knife allegedly in the motel interview-even though he considered carrying the knife a "cardinal sin"-and as the knife was not mentioned in the layoff interview. 356 DECISIONS OF NATIONAL LABOR RELATIONS BOARD I believe and find that Burrow's carrying the knife was not a contributory cause of his layoff but merely a pretext for it. "Numerous warnings about smoking": There were not numerous warnings to Bur- row about smoking out of the smoking areas, but only one warning. Shortly after the election, instead of going to the front of the building to the smoking area, Bur- row stepped outside the building onto the road about 15 or 20 feet from the building and smoked a cigarette. Upon his return Foreman Britton told him he was not supposed to smoke out there, that he could smoke only in the smoking area up front. There was no evidence that thereafter Burrow ever violated these instruc- tions. Brandle testified that Respondent stores such flammable substances as naph- thol, silicone, and hydraulic oil outside the building. It was not proven, however, that the one time he smoked on the road outside the building Burrow was anywhere near the danger spot where these substances were stored. On the entire record I believe and find that this one warning about smoking in some 10 months of satis- factory employment was but a pretext for and not the real reason for the selection of Burrow for layoff. Conclusions as to the Discharge of Burrow As has been seen above, shortly before the election Foreman Wilson West tele- phoned R. M. Wheeler, the mutual friend of West's and Burrow's, and struck a note of alarm over the fact that West thought Burrow was going to vote for the Union. He told Wheeler that Burrow was "a good boy"-meaning a good workman-and that West did not "want to lose him. We want to keep a job for him here." In this statement West revealed his fear or his knowledge that Burrow's being in favor of the Union might cost him his job. That President Reiss was dead set against having the Union get into his relatively new southern operation in Tennessee was revealed in his motel interviews nand in his letters. Burrow had signed a union card and had attended three or four meetings. That management knew and disapproved of Burrow's sympathies towards the Union was revealed by Wilson West's telephone call to both Burrow and R. M. Wheeler shortly before the election. Brandle testified that the two foremen he consulted were the foremen over Bur- row and Rogers. Burrow's foreman at that time, although he had been assigned to him for only 10 days or so, was Richard Britton, who selected Burrow as the most "undesirable" employee. Had Brandle consulted Wilson West, under whom Burrow had previously worked for some 10 months, it is doubtful if West would have recommended Burrow for layoff, as West thought of Burrow as a good work- man. Brandle did not explain why he consulted only two of his four foremen or why he asked only Burrow's and Rogers' foremen for recommendations. As Burrow had signed a union card and attended several union meetings; in the light of Reiss' threats in his letters, particularly against voting for the Union; as management through Foreman Wilson West knew at least that Burrow was sym- pathetic toward the Union and as West, who was in a position to be informed, fore- saw Burrow's loss of his job because of his union sympathies; and in view of the multiplicity of alleged reasons claimed by management for the layoff which were not mentioned on his separation slip or in his layoff or exit interviews, I believe and find that Burrow was selected for layoff and discharged because of his actual or suspected union sympathies or activities and in order to discourage further member- ship or activity in the Union, Respondent thereby violating Section 8 (a) (3) and (1) of the Act. 2. Nelson Rogers Nelson Rogers worked for Respondent from September 1957 until February 12, 1960, most of the time as a trimmer and inspector on semipneumatic tires. In the fall of 1959 he worked for about a month on the "industrial line" and was then transferred back to his old job of trimming and inspecting. According to the credited testimony of Plant Manager Brandle, Rogers was a fairly good worker until he was transferred back to his old job, after which "he got real sloppy. His attitude changed. He got hateful, and everything about it was just dissatisfactory to the company." A foreman. Joe West, under whom Rogers worked his last 2 weeks and who was familiar with Rogers' work for some time prior to that, testified that Rogers was a very careless worker, that his trimming on the inside of the tires was not good, his inspection on splices was not good, and he would not scrap or reject tires that should be scrapped. Several times West spoke to Rogers to try to improve his work Rogers would improve for several days and then would revert. Joe West testified that about February 9, 1960, he picked out from the top of a crate or carton (the carton held about 800 of this size) some 7 tires inspected and passed by Rogers each of which was so vitally defective that it should have been THE PULASKI RUBBER COMPANY 357 rejected by Rogers . The outside diameter of these tires was about 7 inches. West said he picked out these seven tires while Rogers watched him and then took the tires and Rogers into the office and talked to Rogers about the tires and his work. West told Rogers if he passed tires like those again he would fire him. Rogers admitted to West that he would not buy those tires if he were a consumer. West tied up those seven tires, preserved them , and Respondent introduced them in evidence. After these seven tires were in evidence, on rebuttal Rogers testified in substance, having examined the tires, that he would not pass defective tires like those, that he did not pass them, that he had never seen them before, that while he worked there the Company never made tires of that size, 7 D A, and that West did not pick them out in his presence or take him to the office and discuss them. Thereafter Respondent produced from its records irrefutable documentary proof that during Rogers' shift on February 9, 1960, Respondent produced 248 tires size 7 D A and that these tires were run off by employee Bass, whose work Rogers in- spected. As Rogers was completely wrong in his strongly stated testimony that Respondent did not make tires of this size, and as Joe West appeared to me to be a credible witness, I credit West's testimony about picking out these seven tires in the presence of Rogers and taking them and Rogers to the office and discussing them with him. As he testified some 3 months after this incident and could not have for- gotten such an incident in such a short time , I am convinced on this testimony and the whole record that Rogers was a completely unreliable and untrustworthy witness. In addition to the above Rogers was a glib witness who attributed to Brandle a number of indiscreet statements which I doubt he made. For instance, Rogers testi- fied that when Brandle laid him off the latter said that he could not give him his separation slip just then, that he would first have to call Harvey Smith in Akron, Ohio, "to see what to put on your separation slip so I can keep out of trouble with the Labor Board in Atlanta." For some 3 years Brandle had been president of a local of the charging union in Akron which dealt with one of Reiss' companies in Akron, and with that background it is highly doubtful if he made such a statement. In addition Brandle denied it and I credit his denial. Testifying that he had been warned only once for poor work, Rogers elaborated : "In fact, Mr. Brandle went all over town and told I was the best hand he had there." In view of Rogers' work record I do not credit this testimony. Upon close consideration of Rogers' entire testimony and in the light of the whole record, I do not credit any of Rogers' testi- mony that is not corroborated by other testimony. In uncorroborated testimony Rogers testified that he signed a union card and at- tended three union meetings, the last some 3 or 4 days before the election ; that about a week before the election Brandle had him sent into the office and said to him, among other things, that Brandle knew he was for the Union, that he had signed a card, and that he had attended a union meeting at a certain employee's house. As Rogers was a completely repudiated, self-impeaching witness, I do not credit this testimony. Brandle's testimony is credited that in laying him off Brandle gave Rogers as the reasons Rogers' poor workmanship, his hateful attitude, his yelling around the fac- tory, and the repeated warnings he had been given . Other credited evidence was that Rogers' loud voice distracted other employees from their work, and that on about January 25 Rogers told Foreman Joe West in substance that "he would lose no sleep if he was fired from this damn place." Rogers' separation slip, signed by Brandle, stated, "Due to numerous warnings about his work, I am forced to lay Nelson off because of a cut back in prod." Conclusions as to the Discharge of Rogers On the entire record considered as a whole , I believe and find that after several warnings Rogers was selected for - layoff and discharged primarily because of poor workmanship, that this discharge was for cause , and that in so discharging him Re- spondent did not violate the Act. I shall therefore recommend that as to Rogers the complaint be dismissed. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE Respondent's activities, set forth in section III, above, occurring in connection with Respondent's operations described in section I, above, have a close, intimate, and sub- stantial relation to trade, traffic , and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. 358 DECISIONS OF NATIONAL LABOR RELATIONS BOARD THE REMEDY Having found that Respondent has engaged in the unfair labor practices set forth above, I recommend that it cease and desist therefrom and that it take certain affirma- tive action designed to effectuate the policies of the Act. Respondent having laid off and discharged Raymond Harold Burrow because of his actual or suspected union sympathies or activities , I recommend that Respondent offer to him immediate and full reinstatement to his former or a substantially equiva- lent position without prejudice to his seniority and other rights and privileges and make him whole for any loss of pay he may have suffered by reason of Respondent's discrimination against him by payment to him of a sum of money equal to that which he normally would have earned as wages from the date of his layoff, February 12, 1960, the date of the discrimination against him, to the date when , pursuant to the recommendations herein contained , Respondent shall offer him reinstatement, less his net earnings during said period. Said backpay shall be computed on a quar- terly basis in the manner established by the Board in F. W. Woolworth Company, 90 NLRB 289. The violations of the Act committed by the Respondent are persuasively related to other unfair labor practices proscribed by the Act, and the danger of their com- mission in the future is to be anticipated from the course of the Respondent's con- duct in the past. The preventive purposes of the Act: will be thwarted unless the order is coextensive with the threat. In order, therefore , to make more effective the interdependent guarantees of Section 7, to prevent a recurrence of unfair labor practices, and thereby minimize industrial strife which burdens and obstructs com- merce, and thus effectuate the policies of the Act, I shall recommend that the Respondent be ordered to cease and desist from infringing in any manner upon the rights guaranteed in Section 7 of the Act. Upon the basis of the foregoing findings of fact, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. The Pulaski Rubber Company is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. United Rubber, Cork, Linoleum & Plastic Workers of America, AFL-CIO, is a labor organization within the meaning of the Act. 3. In January 1960, by interrogating employees concerning their sympathies to- ward the above-named Union, Respondent interfered with, restrained , and coerced its employees in the exercise of rights guaranteed in Section 7 of the Act , and thereby has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 4. In January 1960, by threatening employees' chances of advancement and job security and by threatening to close the plant and quit business in order to defeat the Union, Respondent interfered with , restrained, and coerced its employees in the exercise of rights guaranteed in Section 7 and thereby has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 5. By discriminating in regard to the hire and tenure of employment of Raymond Harold Burrow, thereby discouraging membership in. United Rubber, Cork, Lin, oleum & Plastic Workers of America , AFL-CIO, Respondent has engaged in and is engaging in unfair labor practices within the meanin g of Section 8 (a) (3) and (1) of the Act. 6. The aforesaid labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. [Recommendations omitted from publication.] Michael Benevento and John Benevento d/b/a M. Benevento Sand & Gravel Co. and Hoisting & Portable Engineers Union, Local 4, International Union of Operating Engineers, AFL- CIO. Cases Nos. 1-C, A-3258 and 1-CA-3304. April 28, 1961 DECISION AND ORDER On January 23,1961, Trial Examiner Louis Libbin issued his Inter- mediate Report in the above-entitled proceeding, finding that the Re- 131 NLRB No. 45.